The Government of Ontario initiated the Changing Workplaces
Review in 2015 to determine what changes, if any, should be made to
employment and labour laws in the province in light of the changing
nature of the workforce, the workplace, and the economy. The focus
of the Review is on the Ontario Employment Standards Act,
2000 (ESA) or the Labour Relations Act, 1995
On July 27, 2016, the Ministry of Labour released an Interim
Report. It canvasses a large number of issues affecting
Ontario's workplaces and provides a broad array of options to
address each issue, which in many places includes maintaining the
"status quo." However, some of the legislative changes
being considered would place additional burdens on employers.
What You Need To Know
The Interim Report focuses on the
need for legislative amendments to address issues facing
"vulnerable workers in precarious jobs." The report
concludes that there are "too many people in too many
workplaces" not receiving their basic rights guaranteed under
the ESA and LRA.
The report makes two broad
conclusions: the administration and enforcement of the ESA should
be strengthened; and there should be a comprehensive review and
reform of occupation-specific exemptions from ESA provisions, such
as minimum wage and hours of work.
The Interim Report reviews what is
seen as a growing problem of misclassification of employees as
independent contractors, and the use of temporary workers (through
a staffing agency or otherwise). The potential options identified
to address this include: expanding the definitions of what
constitutes an "employee" and an "employer" and
the scope of liability for the purposes of the ESA; extending the
ESA's minimum standards to independent and dependent
contractors; and reviewing existing exceptions and special rules
(including with respect to overtime and hours of work).
Many of the changes to the LRA that
are under consideration would support the enhancement of union
rights, including stronger laws on related or joint employers, the
potential expansion of successor rights provisions to contracting
out or contract tendering situations, and a possible prohibition on
replacement workers. For employers in the non-unionized private and
public sectors, the changes under consideration could make it
easier for employees to organize or join a union, engage in
collective bargaining, and strike.1
The Interim Report calls for
submissions on the provisions regarding termination of employment
and severance pay. Significantly, one of the issues under
consideration is whether the ESA should adopt "unjust
dismissal" provisions, similar to those in federal
legislation. Given the recent decision of the Supreme Court of
Canada in Wilson v. Atomic Energy (read our bulletin on
here), in which the Court found that the "unjust
dismissal" provision in the Canada Labour Code
prohibits dismissal of an employee without cause, the introduction
of an "unjust dismissal" provision to the ESA could have
serious implications to employers in Ontario.
The Ontario Ministry of Labour is
inviting comments and submissions on the Interim Report.
Submissions specifically related to the subject of personal
emergency leave are due by August 31, 2016. The deadline for
submissions on all other issues is October 14, 2016. Parties
interested in making a submission to the Ministry are encouraged to
contact the authors. Further information on the Review, the Interim
Report, and how to make a submission can be found here.
1 In Ontario, approximately 86% of the private sector
workforce is not unionized.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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